It violates medical ethics, but is it clearly against the law for a doctor to touch a patient sexually under the guise that it’s critical to her care?
In some states it is illegal, but not in Massachusetts, according to the Middlesex district attorney’s office.
This gap in state law is the reason the office recently decided not to prosecute Dr. Roger Ian Hardy, the popular fertility specialist accused of molesting patients, according to a lawyer for one of his alleged victims.
District Attorney Marian Ryan declined to discuss specific investigations, but confirmed in an interview that she does not believe she has the legal tools to prosecute these types of cases and will push for a legislative remedy.
The state’s high court, she said, has previously ruled that the state law governing rape does not cover instances in which someone obtains consent through fraud. By extension her office believes this applies to indecent assault and battery cases as well. Both charges require a lack of consent.
“There’s no real point in saying to someone let’s go forward when you know you are going to lose,’’ Ryan said.
She said she has drafted legislation, modeled on a Connecticut law, that would change Massachusetts sexual assault laws to make it clearly a crime when a medical professional claims sexual contact is for a bona fide medical purpose. Representative Kate Hogan, a Stow Democrat, has agreed to sponsor the bill. “It’s a simple fix,’’ Ryan said.
Hardy, a reproductive endocrinologist who treated patients at the Fertility Centers of New England based in Reading for 20 years, gave up his medical license in January 2014 amid an investigation by the Massachusetts Board of Registration in Medicine, which licenses physicians.
Since then, prosecutors in two counties have investigated allegations by at least four patients who said Hardy assaulted them during gynecological exams and procedures. But to the women’s disappointment, no charges have followed.
Hardy declined to be interviewed by a reporter who tracked him down at his new home in Thailand last year, as part of a Globe investigation into the long chain of allegations against him.
A Middlesex County prosecutor recently told Tyler Fox, the Cambridge attorney for one of the women, that her hands were tied, according to Fox.
In this patient’s case, Hardy advised in vitro fertilization and did a test called a sonohysterogram in his Reading office. The woman, who recently filed a civil lawsuit against Hardy, the Fertility Centers, and clinic owners, said he pressed his thumb on her clitoris during the procedure. Lying on the table, she felt uncomfortable and wondered if his hand position was necessary to do the test. She grew more suspicious when she later had a similar procedure at Boston IVF and the clinician’s fingers were nowhere near that area, she said.
“To not press charges after the years and years of what he did, I don't understand it,’’ the woman said in an interview. The Globe does not identify victims of sexual assault without their permission.
Ryan’s office pointed to two court rulings that interpreted Massachusetts law relatively narrowly. If someone consents to sexual intercourse, even under false pretenses, it is still consent, the courts found.
In the most recent case in 2007, the defendant had sexual intercourse with a woman by impersonating her longtime boyfriend, his brother, after awakening her in her dark bedroom late at night. The Massachusetts Supreme Court ruled that “fraudulently obtaining consent to sexual intercourse does not constitute rape as defined in our statute.’’ The judges said it was up to the Legislature to amend the rape law.
Ryan said she previously discussed the gap with legislators, but implied that she will now have more leverage to push for change because the Hardy case involves several victims for whom the law would have clearly made a difference.
According to the Rape, Abuse & Incest National Network, a nonprofit advocacy organization based in Washington, D.C., seven states make it a crime for medical professionals to have sexual contact with patients under certain circumstances including those involving fraud, while 10 states specifically mention mental health professionals in their laws.
Rebecca O’Connor, vice president for public policy at the National Network, said that district attorneys have discretion when deciding whether to bring charges, but they can go only so far. “The DA ultimately is the decision maker but at the end of day they have to act within the confines of the law,’’ she said.
Massachusetts is one of only 10 states that still require prosecutors to prove the use of force to win a rape conviction, she said.
Jeannie Suk Gersen, a Harvard Law School professor, questioned why prosecutors did not charge Hardy with indecent assault and battery, since the patient did not give explicit consent for Hardy to touch her clitoris.
But ultimately, she said, Ryan’s office may think “the best strategy here is to bring legislative reform,’’ which she said could be “more transformative.’’
Still, former prosecutor Wendy Murphy said, prosecutors could bring charges and focus on whether a patient’s agreement met a “commonsense’’ standard of consent. “We should let juries decide if it is meaningful consent,’’ Murphy said.
In its investigation of Hardy, the Globe found that, over three decades, more than a dozen people in positions of authority were told, with various degrees of specificity, of Hardy’s alleged sexual assaults and alleged inappropriate contact with patients. But in nearly every case, their response was minimal, and they often believed Hardy rather than the women who accused him.
That changed in 2013 when a physician filed a formal complaint with the medical board after a longtime patient confided in her that Hardy had said he must “stimulate her’’ as part of her fertility treatment, according to state investigative documents.
Ryan’s office previously told this patient and her attorney that it could not prosecute Hardy because the patient had essentially “consented’’ to the sexual contact, according to the lawyer.
She has filed a civil suit against Hardy as well as against Dr. Vito Cardone, the former owner of the clinic, and Dr. Joseph Hill, the current owner.
Essex County prosecutors also are hitting roadblocks in another case involving Hardy. In that case, a 42-year-old North Shore woman awoke from a procedure conducted by Hardy to find her clitoral area raw.
But those in the room told investigators they had not seen anything, perhaps because she was partially covered by a sheet. Without corroboration, Essex County prosecutors said they cannot proceed, Fox said.
Liz Kowalczyk can be reached at email@example.com.